Cybersecurity czar: White House must compromise with Congress on surveillance.

Thursday 16 November, 2017

WASHINGTON — The White House cybersecurity czar acknowledged Wednesday that the Trump administration will have to compromise with Congress to renew a controversial surveillance program set to expire at the end of the year.

Lawmakers want to make changes to scale back the sweeping law, which targets foreign terrorist suspects but also allows the government to collect the content of Americans' emails, phone calls, text messages and other electronic communication without a warrant, when they are communicating with a foreigner.

Rob Joyce, the White House cybersecurity coordinator, said the administration wanted Congress to reauthorize the program — known as Section 702 of the Foreign Surveillance Intelligence Act — just the way it is. But it's now clear that lawmakers are unlikely to do that, Joyce said during a presentation at The Aspen Institute.

"There will be a compromise," he predicted. "I think there are going to be some changes."

However, Joyce, who once ran the hacking division of the National Security Agency, made it clear that the White House hopes to keep Congress from rewriting the law in a way that the administration believes will weaken its effectiveness.

He said the White House is offering lawmakers technical support "to get the best bill possible."

The House Judiciary Committee approved a bill — the USA Liberty Act — earlier this month that would require federal agents to obtain a warrant to search the content of Americans' calls and emails that are collected as part of the surveillance program.

Joyce said Wednesday that a warrant requirement could slow down federal investigators trying to prevent terrorist attacks.

"Operationally, we don't consider that viable," Joyce said.

On the other side, civil liberties groups said the bill approved by the House Judiciary Committee allows too many exceptions to its new warrant requirement.

Federal agents could continue to search for and read Americans' electronic communications without a warrant if they are doing so to obtain "foreign intelligence."

"Though this bill has positive elements, it must be improved as it moves forward," said Neema Singh Guliani, the American Civil Liberties Union legislative counsel. "Disappointingly, the committee failed to adopt improvements that would help close the 'backdoor search loophole.' The loophole has been used by the government to read and listen to Americans’ emails, phone calls, and text messages collected under Section 702 without a warrant."

As a result, Guliani said, "the bill risks locking current illegal practices into law without adequate limits to protect Americans’ constitutional rights."

The Senate Intelligence Committee approved a different bill last month that civil liberties groups say does even less to protect Americans from government snooping. That legislation doesn't require federal law enforcement agents to get a warrant before searching Americans' communications.

The Section 702 surveillance program was approved by Congress in 2008 to increase the government's ability to track and foil foreign terrorists in the wake of the 9/11 terrorist attacks.

It was designed to spy on foreign citizens living outside the U.S. and specifically bars the targeting of American citizens or anyone residing in the U.S. But critics say the program also sweeps up the electronic data of innocent Americans who may be communicating with foreign nationals, even when those foreigners aren't suspected of terrorist activity.

The government calls this "incidental surveillance," and intelligence officials have so far refused to tell Congress how many unknowing Americans have had their personal data collected.

Once the data is collected, the NSA, CIA, FBI and the National Counterterrorism Center can sift through the information in search of Americans' calls and emails — something they would normally need a warrant to do in domestic criminal cases.

The program is set to expire at midnight on Dec. 31 unless Congress acts.

Joyce said Tuesday that he is thankful that lawmakers don't appear to be willing to just let the law lapse.

If that happens, Joyce said, "We go deaf and blind" to foreign terrorists operating on U.S. email servers.